Income Tax Appellate Tribunal - Hyderabad
Shashi Agarwal, Hyderabad vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'B', HYDERABAD
BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND
SHRI CHANDRA POOJARI ACCOUNTANT MEMBER
ITA No.610/H/2002
Assessment Year 1993-94
The DCIT, Circle 2(1), Hyderabad Vs. Smt. Shashi Agarwal,
Hyderabad
(PAN/GIR No.S-706)
(Appellant) (Respondent)
Appellant by : Shri K.E. Sunil Babu
Respondent by : Shri P. Murali Mohan Rao
ORDER
Per Chandra Poojari, Accountant Member:
This appeal preferred by the Revenue is directed against the order passed by the CIT(A) -I, Visakhapatnam (Camp : Hyderabad) dated 15.3.2002 and pertains to the assessment years 1993-94.
2. The main grievance of the Department is deleting the addition which is declared by him in its return of income though there was no corroborative evidence to delete the same and there is no revised return filed by the assessee.
3. Brief facts of the issue are that there was a search and seizure operation conducted in the premises of the assessee on 20.10.1992 and disclosure was made therein. Consequent to the search operation, the assessee filed return of income declaring income in the hands of the assessee at Rs.12,61,200/-. The same was assessed to tax. The assessee is having grievance against that assessment order and went in appeal before the CIT(A) and explained that the assessee made statement 2 ITA No.610/H/2002 Smt. Shashi Agarwal, Hyderabad u/s 132(4) and wherein admitted undisclosed income at Rs.3 crores. According to the assessee, Rs.3 crores was properly explained. It was explained that a sum of Rs.43 lakhs was assessed for the assessment years 1992-93 vide order dated 20.4.1993, another amount at Rs.1.45 crores was disclosed for the assessment years 1992-93 and another Rs.1.05 crores were declared in the hands of M/s Kumar Liquors & Beers (P) Ltd. and M/s Kumar Spirits (P) Ltd. The balance left was only Rs.7 lakhs and it is to be assessed in the hands of Shri Satish Kumar Agarwal, Shri Anil Kumar Agarwal, Smt. Uma Agarwal and Smt. Shashi Agarwal equally. The CIT(A) in the second round of appeal accepted the contention of the assessee and directed the assessing officer to assess only Rs.1.75 lakhs in the hands of the assessee. Against this, the Revenue is in appeal before us.
4. We have heard both the parties and perused the materials available on record. As seen from the facts of the case, originally the assessee disclosed income at Rs.75 lakhs each in the hands of Shri Anil Kr. Agarwal, Shri Satish Kr. Agarwal, Smt. Shashi Agarwal wife of Shri Satish Kr. Agarwal and Smt. Uma Agarwal wife of Shri Anil Kumar Agarwal. Subsequently, the declaration was modified by filing an Affidavit dated 30.11.1992 wherein the disclosure made in the hands of 4 individuals is reduced to Rs.17.5 lakhs each i.e. Rs.5 lakhs for the assessment years 1992-93 and Rs.12.5 lakhs for the assessment years 1993-94 and the balance was declared in the hands of the Groups companies. Later, the assessee has taken a plea that a cash balance of Rs.64,84,936/- as on 31.3.1992 is available. But the assessing officer rejected the contention that there was no evidence on this point. The assessee in this case filed return voluntarily on 29.10.1993 at Rs.12.5 lakhs for this assessment years after completion of search operation. Later, the assessee once again filed revised return of income on 2 3 ITA No.610/H/2002 Smt. Shashi Agarwal, Hyderabad 03.01.1996 admitting income at Rs.12,61,200/- . Now the contention of the assessee is that the assessee's income is only at Rs.1.75 lakhs for the assessment years which is 1/4th share of Rs.7 lakhs. In our opinion, this plea of the assessee cannot be accepted because the income was assessed by the assessing officer on the basis of income declared by the assessee in her return of income. Not only one time but two times the assessee confirmed her income as mentioned above in the return of her income. The income declared by the assessee is voluntary basis and there was no coercion or compulsion on the assessee. The return filed by the assessee is not against her own will. The return is not filed on account of mental or other constraints. There was no coercion exerted on the assessee forcing her to file the return of income in a manner as she filed. The return was filed by the assessee consequent to search and it cannot be said that there was any compulsion on the assessee to declare such income in the return filed by the assessee on various dates. The disclosure made in the returns actually tantamount to an admission on the part of the assessee to effect that the amount disclosed was to be considered as real income to be liable for tax. Once the assessee voluntarily filed return of income and not filed any revised return against excluding the income declared by the assessee on earlier occasion then it is not possible to the assessee to contend that any such disclosure or admission was made on account of mistaken belief. The assessee is estopped from raising any such contention especially when the disclosure comes after an elaborate discussion and opportunity of hearing with the department. In the totality of facts and circumstances of the case, there is no error of law in the view taken by the assessing officer that the disclosure was made by the assessee voluntarily. The disclosure made by the assessee in the return of income is in good faith and the same must be accepted by the department as an honest disclosure and such disclosure in the return of income cannot be deleted by the CIT(A) as the assessee is bound by that return of income and the assessee cannot have 3 4 ITA No.610/H/2002 Smt. Shashi Agarwal, Hyderabad any grievance against the assessee's own admission without filing any revised return of income pointing out any omission on her part. In our opinion, there is no provision under the Income Tax Act to allow any claim of the assessee by the assessing officer without a valid revised return.
5. It may be pertinent to note that the judgment in the case of Goetze (India) Ltd. Vs. CIT (284 ITR 323) (SC) did not take cognizance of the judicial view that the assessee is entitled to make any claim of deduction in the course of assessment proceedings. Also, there is no discussion regarding the difference between revision of return and modification (correction) of return. Before the judgment in Goetze's case, the difference between the two was fairly well understood and recognised. The Allahabad High Court in case of Dhampur Sugar Mills v CIT (1972) 90 ITR 236 (All) had clarified that if an assessee files an application for modifying or correcting a return filed, it would not mean that he has filed a revised return. The original return filed by him will retain the character as original return, but subject to modifications requested by the assessee. But once a revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of the assessment.
6. The judgment in the case of Goetze(India) Ltd. uproots the settled practice and is contrary to the view expressed by the Central Board of Direct Taxes (CBDT) vide Circular No 14 (XL-35) dated April 11, 1955, that the assessing officers should not take advantage of the ignorance of the assessees regarding their rights and draw their attention to any relief to which they are entitled and guide the assesses in making correct claim.
7. The Supreme Court judgment has made everyone realize that if they wish to make any claim in addition to or in modification of what 4 5 ITA No.610/H/2002 Smt. Shashi Agarwal, Hyderabad was made in the original return, the same cannot be made without filing a revised return.
8. It is altogether a different matter that an assessee can revise the return of income under section 139(5) of the Act only when he discovers any 'omission or any wrong statement'. On considering the totality of facts and circumstances of the case, the deletion made by the CIT(A) is not justified and accordingly, the order of the CIT(A) is reversed and the order of the assessing officer is restored.
9. In the result, the appeal of the Revenue in ITA No.610/H/2002 is allowed.
Order pronounced in the open Court 11 .2.2011
Sd/- sd/-
G.C. GUPTA CHANDRA POOJARI
VICE PRESIDENT ACCOUNTANT MEMBER
Dated the 11th February, 2011
Copy forwarded to:
1. The DCIT, Circle 2(1), Hyderabad
2. Smt. Shashi Agarwal, 3-5-1092/5/F, Narayanguda, Hyderabad
3. CIT(A)-I, Visakhapatnam and Camp at CIT(A) -I, Hyderabad.
4. CIT, Hyderabad
5. The D.R., ITAT, Hyderabad.
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